JOHN F. NASON, JUNIOR, vs. BOSTON GARDEN ARENA CORPORATION.

336 Mass. 762

January 2, 1958

Exceptions overruled. The plaintiff, a minor thirteen years of age at the time of the accident, went on a Sunday afternoon in November, 1947, with a group of companions to a private indoor skating rink, the ice surface of which was formed by flooding the concrete floor and freezing the water. The plaintiff began skating about two o'clock. The rink was two hundred fifty feet long and eighty to one hundred feet wide, and at times during the afternoon there were between seven and eight hundred skaters. Sometime after three thirty o'clock the ice surface became deteriorated. It had developed cracks. Pools of water appeared and so did a few bare spots. While the plaintiff was skating there was a group of seven or eight boys who were chasing each other, playing tag, skating in and out of line at considerable speed, and bumping into at least ten other skaters. No one in charge of the rink interfered with their conduct. While the plaintiff was skating near the end of the rink one of this group bumped into him, causing him to lose his balance. One of his skates got caught in one of the cracks in the ice causing him to fall on the ice, and another skater ran over his fingers. Under our law as it then stood, G. L. (Ter. Ed.) c. 84. Section 21 -- see now St. 1955, c. 505 -- the plaintiff could not prevail in the absence of notice to the defendant of the time, place, and cause of the injury. Section 21 applied to all snow or ice made the basis of action, "whether inside or outside the building and whether of natural or artificial origin." DePrizio v. F. W. Woolworth Co. 291 Mass. 143, 147. Walsh v. Riverway Drug Store Inc. 311 Mass. 326. Smith v. Hiatt, 329 Mass. 488, 489. There was no error in the direction of a verdict for the defendant.

336 Mass. 762

January 7, 1958

Decrees affirmed. These are two appeals by the respondent from two decrees entered in the Probate Court, one appointing a guardian under G. L. (Ter. Ed.) c. 201, Section 6, as appearing in St. 1956, c. 314, Section 2, and a second denying a petition to appoint a conservator under G. L. (Ter. Ed.) c. 201, Section 16, as appearing in St. 1945, c. 728, Section 2. The ward, fifty-two years of age, has been a voluntary patient at the McLean Hospital, an institution for the treatment of the insane, since he arrived there at three o'clock on the morning of June 2, 1956. He had been previously hospitalized in mental institutions. He is suffering from delusions and from a

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mental illness which has been diagnosed as "Schizophrenia Reaction -- Type Undifferentiated," and needs continued medication and psychiatric treatment for at least one more year at the hospital. The judge was not plainly wrong in finding that the ward "is so mentally ill that he cannot handle his own affairs and he needs not only a guardian of his property but also a guardian of his person." Bashaw v. Willett, 327 Mass. 369. Willett v. Willett, 333 Mass. 323. The appointment of a guardian was appropriate and obviated the necessity of the appointment of a conservator. There was no error in the admission of a writing signed by the respondent consenting to the appointment of a guardian. There was a question in the mind of the physician who attended the respondent as to his competency to sign. Counsel appearing in behalf of the respondent could have requested the judge to admit the evidence only de bene depending upon what the rest of the evidence would show as to Russell's mentality before making a final ruling on the admission of the paper. An inference could be drawn that one who understandingly subscribes to the appointment of a guardian is not so lacking in mentality as to require such an appointment -- a position not prejudicial to that taken by the objecting counsel.